March 31, 2007

Anticipating tomorrow’s Opening Game, National Public Radio’s All Thing’s Considered did a feature this afternoon titled “Spring Signals the Return of Baseball (Haiku)” (Debbie Elliott, March 31, 2007). Click the Listen button to hear the audio version of the segment. Here’s the online description:

All Things Considered, March 31, 2007 · Japan’s love for baseball has translated into an art form: baseball haiku. Cor van den Heuvel has edited a new anthology of baseball haiku, including a poem by Jack Kerouac. He speaks with Debbie Elliott about the book.

Cor tells why baseball and haiku are made for eachother. He reads a few haiku, and a recording is played of Jack Kerouac reading one of his own baseball haiku. Kerouac is believed to be the first American poet to write a baseball haiku.

Of course, we’ve been featuring poems the past few days from Baseball Haiku (Cor van den Heuvel and Nanae Tamura, eds., W.W. Norton Press, April 2007) (see here, there, here; and told you all about the book back in January, here) The book is officially released on opening day, April 1, 2007.

update (April 1, 2007): The Los Angeles Times had an opinion piece yesterday on the new Baseball Haiku book. Unfortunately, the headline helps to perpetuate the incorrect plural spelling of haiku (by using an “s”): “Baseball haikus” (LATimes.com, March 31, 2007; free registration needed to see the entire piece). update (April 22, 2007): Cor van den Heuvel emailed me today to say that the LATimes review includes fifteen poems, one of which is my “umpire/BlackBerry” senryu. The print edition had the headline “Three Lines and You’re Out.”

I only read it for the poetry: Speaking of national pastimes, the Playboy weblog also featured Baseball Haiku in a posting titled “Poetry in motion” (April 2, 2007). Rocky Rakovic says the anthology is “a far cry from Casey at the Bat.” Rocky was kind enough to include my “umpire/BlackBerry ump” senryu among the three poems he chose to highlight.

afterwords (May 25, 2008): The Poet’s Corner in today’s Washington Post Book Review section features a column by Mary Karr about the Baseball Haiku book. With examples, Karr says “single-image poems capture moments from my own baseball-centered childhood.” She concludes: “Such feeling in such a small space. These haiku prove that in a secular culture, the stadium — from little league through the majors — may be the closest many Americans get to a house of worship.”

A year and a day after the U.S. Supreme Court refused to hear the 800-PIT-BULL case, Pape & Chandler v. Florida Bar Ass’n, which could have curbed FBA’s overzealous Dignity Police (see our prior post), Texas Third-Wave lawyer Chuck Newton brought up the situation of Steven Miller, Esq., and his battle with the Florida Bar over ads for DivorceEZ.com. Newton asks: “Does the Bar Have a Right to Regulate Good Taste” (Spare Room Tycoon, March 28, 2007) (via Carolyn Elefant, Legal Blog Watch).

DivorceEZ is a “flat-fee, no-frills divorce law practice,” and says it will help you “get out of the hell hole you call a marriage” and “get rid of that vermin you call a spouse.”

You can read Miller’s press release here, and click to see the 30-second commerical the Florida Bar refuses to allow on tv.

The Florida Bar’s advertising review committee told Miller the problem is that the ad is a “verbal depiction” whose language promises a particular result. Newton says “Mr. Miller’s TV spot is not too serious, but stopping him from running it is.” Like virtually every observer, Chuck Newton believes the bar is trying to ban what it considers bad taste. Newton notes:

“Some people, like me, are turned off by this type of TV spot. Some people gravitate toward the hyperbole. Further, some people desperately need the services, at the price, this lawyer is offering. Nobody has demonstrated he is doing a bad job for his clients. Nobody is accusing him of not doing what he says he will do. No client is filing a grievance asking him to stop the ad. Only the Bar-tenders are not happy.”

Newton asks who put the Florida Bar in charge of good taste. Of course, the real question is whether the Florida Bar has any right to be censoring bad taste (a sufficient state interest). The Florida Supreme Court says yes, and the U.S. Supreme Court could have definitively answered that question last year, but declined the opportunity.

I agree with Chuck that “The Bar-tenders are concerned that the ad might work.” A decade as an antitrust regulator specializing in the learned professions makes that purpose seem most logical to me. I’ve been saying for years that a large segment of the bar does not like advertising, because it might provoke a spurt of price competition for customers, or usher in alternative methods for providing legal services. However, I do not agree with Chuck that “They are not concerned about the perception this might cause the legal profession in the state.” [emphasis added]

The Florida Bar specifically attacked Pape & Chandler’s pit bull logo and theme in 2004 because the dog was considered to be too nasty a symbol for lawyers and irrelevant to the selection of a lawyer. As we described in a prior post (Nov. 17, 2005), Florida’s highest court confirmed with alacrity, in Florida Bar v. John Pape and Marc Chandler (Fla. Sup. Ct., 2005., 20-pp pdf), stressing:

“These devices, which invoke the breed of dog known as the pit bull, demean all lawyers and thereby harm both the legal profession and the public’s trust and confidence in our system of justice.”

At the public admonishment of Pape and Chandler, Florida Bar Association President Alan B. Bookman continued to stress their role as Dignity Police, saying “Permitting this type of advertisement would make a mockery of our dedication to promoting public trust and confidence in our system of justice.” (more in prior post) The Bar had presented absolutely no evidence of consumer harm or of public views on the topic; what counted was the assumed affect on the Bar’s image.

In several posts (including here and there) over the past couple of years, I’ve described numbheaded attempts by the bar and courts to stifle advertising in the name of consumer protection and taste, but noted that the efforts demonstrated “a dislike of all lawyer advertising” — because it is perceived as undermining the profession’s supposed “dignity” (by suggesting we are actually in commerce) and instigating an outbreak of unseemly competition.” The two issues — dignity (taste) and competition — overlap. Part of the urge to uphold the profession’s image is, I’m convinced, the unstated belief that dignity helps to sustain an image that supports high fees. When ads such as those from DivorceEZ both threaten the Bar’s selfesteem and challenge entrenched pricing and service practices, it can be no surprise that phony issues are raised aplenty to keep the ads out of view of the public.

It’s not just the Florida Bar that wants to stifle as much advertising as possible. Kentucky and Missouri show the same tendencies (prior post). Moreover, as I pointed out in a post earlier this year, the New York State Bar Association explicitly established a task force on lawyer advertising in 2005 “to develop rules, standards and mechanisms aimed at limiting lawyer advertising to the fullest extent permitted, within the limitations of the First Amendment.” (NYSBA press release, June 1, 2005)

In a way, I think the urge to police for bad taste and enforce dignity is more dangerous for the future of the profession, and its relationship to the consuming publc, than any anticompetitive intent behind advertising regulations. (For one thing, having restrictive rules adopted by the courts almost always gives antitrust immunity to proponents in the Bar.) Along with the FTC and the drafters of the Model Code, I believe that regulating taste has little or nothing to do with protecting consumers, and can harm them by limiting useful information and choice (prior post). Nonetheless, I’m pretty sure that new service and pricing options can be brought to the public in effective ways that can pass any reasonable “taste test.”

On the other hand, with their insistence on presenting a tasteful, dignified image to the public, the Dignity Police are almost certainly further damaging the very image that the Lawyer Guild wishes to gild. In an early post at this website (“first thing, let’s quell all the liars“), I made a still-relevant plea:

My message to the legal profession: You do need more PR, but it must be Professional Responsibility, not Public Relations. Image crafting only sounds like more deception to the average (and above-average) American. Like more lies. Lost trust has to be earned the hard way — client by client, case by case, with the focus on competence, diligence, and loyalty toward the client; on responsibility toward society rather than toward guild and gelt; on virgorous overseeing rather than overlooking of ethical rules; and on service rather than self-importance.

The ridicule that the mainstream press (e.g., St. Petersburg Times editorial, and James J. Kilpatrick column), and the blogosphere (e.g., from Hornsby, to Whisner, to Elefant, and Pfeiffer) heaped on the Florida Supreme Court for its banning of the pit-bull campaign is an indication that attempts to maintain/create an appearance of dignity has just the opposite effect. Of course, virtually every non-lawyer on the planet knows that (and even most lawyers do). Just consider how we feel about the phony-genteel and dignified-prissy folk we’ve met in our lifetimes.

For the lexiconically minded, here are some definitions of self-importance:

American Heritage: self-importance: Excessively high regard for one’s own importance or station; conceit. (The American Heritage® Dictionary of the English Language: Fourth Edition. 2000)

Dictionary.com: self-importance:having or showing an exaggerated opinion of one’s own importance; pompously conceited or haughty.

In contrast, WordNet notes that dignity is a Coordinate Term for the noun self-importance. “Dignity” is the quality of being worthy of esteem or respect. Dignity comes from your values and your actions. Acting self-important is both undignified and tasteless.

Update (April 1, 2007): Thanks to George Wallace (who is not afraid to refer to himself as A Fool in the Forest, whatever the Dignity Police might prefer) for including this posting in his April Fool’s Blawg Review Prequel 2007. His prequel to tomorrow’s Blawg Review #102 (which George hosts at his Declarations & Exclusions insurance law weblog) is surely one of the more intelligent celebrations of April’s Fool’s Day you will find in the blogoshpere. Its list of interesting recent posts from law-related weblogs is “constructed . . . around illustrations from Stultifera Navis, the 1497 Latin translation of Sebastian Brant’s 1494 satirical German text, Das Narrenschiff, aka The Ship of Fools.”

The brainchild (love child?) of the enviably-multi-talented Aurora Antonovic, this ambitious project includes the Magnapoets Japanese Form weblog, which will feature haiku, senryu, tanka, haibun, and haiga. MJF will have haikai by a select list of haijin. For some reason, Aurora snuck me into the group, and I’m honored to be included. Please check it out.

March 28, 2007

One under-appreciated advantage of having a poor memory (of course, husbands know many others) is the pleasing rediscovery of one’s prior workproduct. That’s especially true for the f/k/a Gang, when the piece seems interesting, informative, irreverent, or in-sync with a hot current topic. Indeed, for a weblog editor, such rediscovery can mean avoiding the creation of a brand new post by republishing or reworking the resurfaced gem.

Recent visitors know that the topic of lawyer competence (and what bar leaders are doing about it) has been on my mind a lot lately (e.g. here and there). My curiosity was picqued, therefore, when I noticed on the SlimStat page for this weblog, that someone had visited an f/k/a post this afternoon titled “an appearance of incompetence” (Dec. 12, 2005). Honestly, I had no idea what that posting might be about. However, so charmed and re-enlightened was I by it, that I am reproducing most of the piece below for your edification and entertainment.

In addition, if your memory synapses are firing well, you may recall that I promised a couple days ago to bring our visitors previews of the poems found in Baseball Haiku (Cor van den Heuvel and Nanae Tamura, eds; to be released April 1, 2007, by W.W. Norton; prior post) As baseball is a theme often connected with memory (or vice versa), you’ll also find selections by three of our Honored Guest Poets from Baseball Haiku throughout this posting.

My visit back to this “appearance” posting reminded me of my first experience with “Main Street Lawyers” filling out forms. After a dozen years as a government antitrust lawyer and manager, I had started on a new career path and found myself serving as a temporary law clerk in Family Court. Part of my job was reviewing the adoption applications, which were made on a standardized form. I quickly learned that the work of one elderly lawyer — who everyone was always saying was “brilliant as a young man” — needed especially close scrutiny. One question on the adoption form, in the section collecting data on the birth mother, was “Age at Birth.” Apparently thinking the question wanted the child’s age at its birth, the elderly lawyer wrote in “zero.” If done intentionally as a bit of humor, the answer was certainly witty. However, the adoption process was slowed down for his client, as the form had to be returned to his office for correction. I wonder if arrows would have helped him. Anyway, reprised herewith is the meat of this newly-rediscovered f/k/a posting:

Yesterday evening, I filled out my biennial New York State Attorney Registration form. . . . . Clearly, one never had to be a rocket scientist to fill out the old Attorney Registration form. In fact, even though some lawyers can be less than fully competent and — more often — less than fully diligent, we would have thought that being a member of the NYS bar might have been sufficient preparation to fill out the Form.

It was quite surprising, therefore, to find the following greeting, from the NYS OCA Attorney [Office of Court Administration] Registration Unit, accompanying the Form:

Dear New York State Attorney,

We are pleased to provide you with this redesigned Attorney Registration form, which includes, for the first time, graphically-enhanced, step-by-step instructions on how to complete the form . . . .

That’s right: “graphically-enhanced, step-by-step instructions”! To be more precise: in the lefthand margin of the Instruction Page, you will find tiny reproductions of the two-page Registration Form, with — hold on! — arrows pointing from each Section of the Form (you know, A, B, C, D) to the related Instructions (again, A, B, C, D).

“easy to assemble”
I put it back and
grab a teddybear

…………………………………… by dagosan

Am I being too negative? Well, go here to see just how helpful this graphic enhancement can be for the poor lawyer facing the task of filling out his or her Registration Form. Remember, the attorney gets only two months to perform this task.

We have at times accused bar regulators of treating both clients and lawyers as if they are simpleminded This little graphic instruction boost seems to suggest a new level of disdain for lawyer intelligence and attention to detail. Just who needs these arrows? What kind of mistakes were being made on prior forms? And, how much did OCA pay for the assistance of form-filling and graphic design experts?

Maybe we should show these Registration forms to pro se litigants, as they struggle to fill out court filings and pleadings. It might make not having a lawyer seem a lot less worrisome. In fact, each pro se party might start hoping the opposing side hires one of them lawyers who needs them there arrows.

in the shoe box
attic light from one window
and the creased Willie Mays

March 26, 2007

No, I didn’t need to see Sunday’s New York Times article to know how counterproductive multi-tasking can be. “Slow Down, Multitaskers, and Don’t Read in Traffic, by Steve Lohr, March 25, 2007. Of course, “knowing” and “acting accordingly” are two very different things. The Times warns “Confident multitaskers of the world” that neuroscientists, psychologists and management professors are all suggesting “that many people would be wise to curb their multitasking behavior when working in an office, studying or driving a car.” Their advice:

“Check e-mail messages once an hour, at most. Listening to soothing background music while studying may improve concentration. But other distractions — most songs with lyrics, instant messaging, television shows — hamper performance. Driving while talking on a cellphone, even with a hands-free headset, is a bad idea.

“In short, the answer appears to lie in managing the technology, instead of merely yielding to its incessant tug.”

Over the past few years, the f/k/a Gang has harped on the dangerous irresponsibility of Driving While Phoning, and bemoaned the effects of mutiltasking and techno-distraction on our productivity. In the well-titled post “multi-non-tasking,” you’ll find tips on controlling technology, and the admonition that “If you don’t already possess the basic skills to manage information, technology might become a hindrance more than a help — it becomes a liability, a part of the problem.” (See Paul Chin’s article “Unplugged: Information Overload Requires a Human Solution,” Intranet Journal, Oct. 13, 2005).

In 2005, I admitted that: “I wish I could absolve myself for my inefficient use of technology (such as checking emails and weblog-referrers far too often), but the main culprit is indeed the guy whose image is reflected in the glare of my computer screen.” Despite that confession, I never learned my lesson. Instead, multitasking woes increased exponentially (and existentially), when I established a second, fullblown weblog at the end of last summer, SHLEP: the Self-Help Law ExPress. The temptation to interrupt my work flow constantly, in order to make one more Google search or ensure that I hadn’t missed a Comment or email message, was incessant, and I gave in day in and night out. Last week, I finally came to my senses and put in my resignation notice at shlep (while noting my pride in its accomplishments and asking for help in finding shlep a good a adoptive home).

in the middle
of the distraction —
an interruption

………………………………. by dagosan

The good news for f/k/a fans, of course, is that my period of neglecting f/k/a should soon be over, and (health and technology-willing) The Gang will be back to its old tricks very soon. More one-breath poetry and breathless punditry are on their way, tempered — I hope — with an increasingly zen-like ability to attend to one thing at a time. Meanwhile:

You’ll surely scratch your heads to learn that firms now have to worry about lawsuits, and claims for overtime pay, from stressed-out employees who can’t resist checking from home on their office email and projects, using company-supplied PDAs. “How to Avoid Lawsuits by Tech-Driven Employees,” by Frank C. Morris Jr., New Jersey Law Journal, March 9, 2007 (via Point of Law, March 23, 2007)

An-often benign distraction this time of year, of course, are thoughts of Spring Training and the upcoming baseball season. This very posting got delayed tonight (until after “24” was over), because my advance copy of Baseball Haiku arrived in the mail this afternoon (see our prior post). The book should be at stores this weekend, and shipping from Amazon.com too (at a nice discount). The book contains over 200 of the best haiku written about baseball, by 44 poets. In a starred review, Library Journal said that: “Not one of those parody collections. . . . . [it] inspire some ball fans to be poets and some poets to be ballplayers.” You’re going to get a few sneak peaks this week right here at f/k/a, with selections by some of f/k/a‘s Honored Guests Poets, and by its editor, Cor van den Heuvel, the primary spirit behind Baseball Haiku.

March 24, 2007

haiku update (noon, March 25, 2007): In case you thought only males wrote haiku and senryu about March Madness, please scroll down to the poems that Roberta Beary sent over our e-transome early this morning. You’ll find her game-winning three-pointers at the foot of this post.

Jack the Bulldog is the mascot of the sports teams at my college alma mater Georgetown University. The last time you saw Jack’s image at this website, I was complaining about Florida’s ban on the use of a pit bull logo by motorcycle lawyers Pape & Chandler. Similarly, the last discussion of NCAA basketball here at f/k/a, concerned the antitrust implications of the NCAA purchasing the NIT (plus an explanation of why nonprofit organizations might seek to eliminate competition). Frankly, I’m not much of a sports fan (except for good basketball and baseball haiku), and was even going to spare you my usual lament over the flood of cliches that comes this time every year, e.g., “March Madness” and “The Big Dance” (which is not to be confused with this big dance).

But, no son of Georgetown with a weblog could possibly fail to mention the play of this year’s Hoya team, so far, in the NCAA Division I basketball championship tournament. As the news media is reporting today, Georgetown beat Vanderbuilt last night [66 to 65] to advance to the regional final [“Elite Eight”] for the first time since 1996. See “Hoyas past is becoming present,” New York Times, by John Branch (March 24, 2007); “Money on the Bank,” Washington Post, by Camille Powell, March 24, 2007. Even I watched the last three minutes of this exciting game, in which the “Heart-attack Hoyas” pulled out another last-moment victory. My BBall-crazy friends tell me that the Hoyas have given fans some of the best collegiate games of the year the past couple of weeks. [update: 9 PM Sunday: Congratulations to the Hoyas on making it to the Final Four. They sure made it interesting. See “Georgetown Gets Revenge on UNC 96 to 84,” Raleigh Chronicle, March 25, 2007]

That’s enough sports-talk for me — except to note (via HoyaSaxa.com) that this is the 100th Season of intercollegiate basketball at Georgetown (many of which were quite dreadful, until the coming of the first John Thompson and Patrick Ewing).

However, you deserve the usual portion of punditry and poetry before you leave today. The poetry is below, from a few of our Honored Guest Poets. For punditry, I want to point you to Skip Sauer’s discussion of wasted office time spent on NCAA tournament brackets, in “March Madness & the Hype Machine” (March 19, 2007), at The Sports Economist weblog. For interesting but largely useless information, I am going to answer the question often asked by fans of opposing teams, “What the hell’s a Hoya?” The story that I have heard and believed for forty years [except for the supposed meaning of “rocks” given below] can be found at Wikipedia:

“What is a Hoya?“

The University admits that the precise origin of the term “Hoya” is unknown. The official story is that at some point before 1920, students well-versed in the classical languages invented the Greek hoia or hoya, meaning “what” or “such”, and the Latin saxa, to form “What Rocks!” Depending on who tells the story, the “rocks” either refer to the baseball team, which was nicknamed the “Stonewalls” after the Civil War, to the stalwart defense of the football team, or to the stone wall that surrounded the campus.

In 1920, students began publishing the campus’s first regular newspaper under the name The Hoya, after successfully petitioning Rev. Coleman Nevils, S.J., Dean of the College, to change the name of the young paper, which was originally to be known as The Hilltopper. By the fall of 1928, the newspaper had taken to referring to the sports teams (then called the Hilltoppers in reference to Georgetown’s geography) as the Hoyas. Dean Nevils’s former school, College of the Holy Cross, also refers to the term “Hoya” in one of its fight songs, as does a third Jesuit school, Marquette University. Big East and other opponents, whose schools tend to have more concrete nicknames, have long used “What’s a Hoya?” as a chant to mock Georgetown.

Now, turn down that game, and enjoy haiku and senryu about basketball, from Ed Markowski and a few other f/k/a friends:

Manhattan
the shadow of a skyscraper falls across
the basketball court

update:(March 25, 2007): No haijin covers gender wars the way Roberta Beary can. Inspired by this posting last night, she turned her focus on the NCAA basketball tournament — no fouls or double-dribbles here:

March 20, 2007

My brain’s been doing a lot of “Scootering” lately: forgetting a fact, then remembering it, then forgetting it again. (see WaPo article, “Where’d We Leave that Darn Fact?,” Feb. 11, 2007) For well over a month, I’ve “forgotten” to fulfill my promise to write about our graying legal profession. That’s despite seeing many reminders in the news and coming across the following quote while reading the P.D. James novel “A Certain Justice” (Seal Book, 1997, reprint 2006, at 294):

“I shall, of course, be retiring as Head of Chambers at the end of the year. A lawyer whose mind is apt to go blank is not just inefficient, he’s dangerous.” – Hubert Langton, (the already-dangerous) Head of Chambers

What finally pushed me to finish this lengthy piece is the news from the Alzheimer’s Association, that “Alzheimer’s Disease Prevalence Rates Rise to More than Five Million in the United States” (March 20, 2007; full report, 28 pp pdf; fact sheet). Apparently, “One out of eight people age 65 and older has Alzheimer’s, with up to half a million Americans under 65 suffering from early onset Alzheimer’s. Ten percent of the lawyers in Washington State are over age sixty. If the numbers are similar for the entire country, there may already be 10,000 to 15,000 lawyers with Alzheimer’s disease. How many of them are still in practice? [update: (March 22, 2006): “State Bar Association Calls for Increasing Retirement Age for Judges [to 76],” NYSBA Press Release, March 22, 2007]

Yabut defined “peridementia” as the period in which the subject starts to have a mild version of the loss of intellectual capacity that is associated with dementia — i.e., impairment of attention, orientation, memory, judgment, language, motor and spatial skills, and function.

As peridementia could very well occur long before one’s retirement, Prof. Y wondered when interference with job functioning becomes significant enough that something needs to be said and done about it within a firm or within the bar, given the ethical obligation of lawyers:

to reasonably consult with the client and keep the client reasonably informed about the status of the matter (Rule 1.4)

to refuse or withdraw from representation of a client when “the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” (Rule 1.16a), and both

to report to disciplinary authorities the conduct of another lawyer that “raises a substantial question” as to the lawyer’s fitness to practice law (Model Rule 8.3) and

to “make reasonable efforts as a manager or supervisor to ensure that a law firm “has in effect measures giving reasonable assurance that all lawyers in the firm conform to the Rules of Professional Conduct.” (Model Rule 5.1).

Since then, the topic of a graying legal profession has gotten quite a bit of attention. Back in 2005, my alter ego fretted:

If my otherwise-healthy, middle class and professional, over-50 friends are any indication, there’s a lot of “peri-dementia” going around. People who joked a few years ago about their first batch of Senior Moments, aren’t joking any more. We seem to be having “brainos” that are quite a bit more worrisome than the increased numbers of typos found in our documents. They include episodes of mild confusion and disorientation; skipping steps in necessary tasks; and memory lapses considerably more important than the proverbial word on the tip of our tongues.

Because “76% of boomers intend to keep working and earning” after retiring from their regular job (Merrill Lynch survey, Feb. 2005), and large numbers of Baby Boomers (in both the U.S. and Canada) will in fact have no choice but to continue working, due to financial imperatives, Prof. Yabut opined that peridementia could become commonplace in the workplace. And, he asked a few pertinent questions:

What are actual or potential employers, and co-workers, going to do about peridementia? How should ethical requirements of competence affect the choices made by lawyers and other professionals? Will age discrimination laws become a shield for those who aren’t quite as sharp as they used to be? Does society want to offer such protection?

Professors Becker and Posner wrote in 2005 about the related topic of judges and law professors who “Overstay Their Welcome” Judge Posner focused on septuagenarians, noting that a loss in mental capacity from aging “may reduce the value of [their] entire output to zero.” Prof. Daniel Solove at Prawfsblawg wasn’t convinced that the problem of mental acuity is significant enough to warrant the testing suggested by Posner, but noted that “retirement is often the most effective remedy for dealing with a lazy or problem-generating judge or faculty member,” while preserving tenure.

Becker and Posner were talking about the pre-Boomer generation of judges and lawyers, whose aging problems are already with us. Even more than in 2005, there are strong reasons why I believe Baby Boomer peridementia is also very likely to blossom within the legal profession in the coming decade or two, as BoomerEsq decides to work well past the traditional retirement age (a trend already noted in studies such as “The Changing face of the legal profession,” which is discussed below):

As the Pro Bono Institute’s Second Acts program has noted, “Legal researchers and demographers have determined that, over the next two decades, the number of lawyers in the United States aged 50 and older will triple.”

Many organizations and bar groups are encouraging older attorneys to move into public interest legal roles after they retire from the “first legal career”. See, e.g., “The Coming Wave,” Harvard Law Bulletin, Fall 2006; and Marc Galanter’s 1999 law review article “Old and in the Way“. The 2002 ABA family law pro bono report noted (at 9): “senior attorneys are a prime source from which to recruit new pro bono attorneys. ” [Aside: Will peridementia — or worse — follow affluent lawyers who retire from their first careers and enter a public interest Second Act? How will this affect their new, at-risk or low-income clients? How closely can or will volunteer lawyers be monitored, and by whom?]

The trend of Boomer undersaving continues, making it ever more likely that many lawyers will need to continue working well past “traditional” retirement age. (e.g., Register-Mail/AP, Boomers may face funding shortage: Saving at lowest rate since Great Depression,” Feb. 2, 2007). [Aside: Is it safe to assume that this phenomenon particularly affects “public interest” and “solo” attorneys, who have less income than their professional brethren? What does that mean for their clients?]

The factors that are most predictive of delayed retirement — “Lower rates of retiree health insurance offers from employers, higher levels of educational attainment, and lower rates of defined benefit pension coverage” — fit many segments of the legal profession closely. “Why Do Boomers Plan to Work so Long?” (Urban Institute, December 2006)

Baby Boomers seem far more inclined than previous generations to deny (or cover-up) the effects of aging (including their gray). They also give very little credit to the ability of the coming generation of professionals (see Washington Lawyer, From the President, Feb. 2007). Ellen Goodman recently pointed out these attributes in her Boston Globe column, “Junior envy,” January 26, 2007, asking “Is it possible that the same generation that famously didn’t trust anybody over 30 when they were 20 doesn’t trust anybody under 50 now that they are turning 60?” And, Goodman notes, “One of the charms of the boomers . . . is how they are managing to age without getting old. My favorite factoid comes from a Yankelovich study showing that boomers define ‘old age’ as starting three years after the average American is dead. It’s a new wrinkle on the 1965 lyric by The Who: ‘I hope I die before I get old’.” [And see “Is Looking Your Age the New Taboo?” (New York Times, March 1, 2007)]

With so many of them spending long periods of time taking modern serotonin-uptake antidepressants, Baby Boomers are facing a potentially enormous mental-neurological time bomb. Thus, in his book Prozac Backlash (2000), Joseph Glenmullen, M.D., warns of potential side effects from Prozac and similar serotonin-boosting antidepressants. Dr. Glenmullen points to memory loss problems and structural “silent brain damage” due to the brain’s “backlash” reaction to artificially elevated levels of serotonin. The backlash may make users prone to prematurely develop neurological conditions (including dementia) or leave them with unsafe levels of healthy brain cells when faced with the normal aging process. (see Chapter 1, The Awakened Giant’s Wrath: Risking Brain Damage) [Could this be why so many Boomers seem to have memory problems at a far younger age than their parents did? Or is it the Teflon and microwaves?] Because lawyers are well-known to suffer depression at rates above all other professions, it is safe to say that a large number of us have experienced long periods of articifically-elevated levels of serotonin.

I strongly agree with pundits who herald the wisdom that can only come with age, and who plead that the elderly be treated with dignity and respect. But, there can be little doubt that many of the mental faculties that are important in everyday law practice are adversely affected by old age. For example, “older adults are not only more inclined than younger adults to make errors in recollecting details that have been suggested to them, but are also more likely than younger people to have a very high level of confidence in their recollections, even when wrong.” See “Older Adults May Be Unreliable Eyewitnesses, Study Shows,” Medical News Today, 25 Feb 2007 (via Idealawg). Moreover, in the vast hinterlands of legal practice in America (outside the realm of elite law firms) — where most lawyers toil and most clients are served — there are a lot of older lawyers who have failed to keep abreast of changes in the law, even in areas where they regularly practice.

For every sage jurist or lawyer who brings glory to the profession, we have all winced over (or smirked at) the courthouse lawyer who has overstayed his welcome in the profession. What will the Bar do to protect our clients (and our profession) when the Overtimers greatly multiply in number over the next couple of decades?

My primary concern continues to be the same as when this weblog was called ethicalEsq: the welfare of the “average” client, whose lawyers work on Main Street, not Wall Street. The legal profession has never done an adequate job of policing its ethical rules — and that is especially true of the demand that lawyers practice with competence and diligence. (see, for example, this post and that one; and my recent piece at shlep on “Family Law Civil Gideon, March 9, 2007). I’m willing to assume that most large law firms (“BigLaw”, “White Shoes”, etc.) have or will have in place procedures that will help assure that the workproduct of aging lawyers is monitored and competence maintained — with valued partners given the chance to adapt their practices to their changing mental and physical realities. Unless prevented by age discrimination laws, it’s most likely, of course, that financially “unproductive” lawyers will be pushed out by larger firms prior to becoming a competence problem [see below, and the recent flap over “de-equitization” at Chicago-based Mayer Brown, which has provoked concern from Rick Georges and Eric Mazzone, and outrage by Larry Bodine (via LegalBLogWatch)].

With the obvious disclaimer that no generality fits all members in any category, I have much less confidence in solo, duo and other small firms being prepared to deal with the problems of aging lawyers. Despite all the attention given to the BigLaw crowd in NYC, such firms make up 80% of the practicing bar here in New York State. In “SmallLaw” firms, the person deciding what to do about a problematic older lawyer is very likely to be that very same lawyer (or maybe his brother or childhood friend, who will be facing the same issue soon). [An analogous situation is the lack of built-in monitoring and “self-discipline” in solo and duo firms, which has resulted in a higher incidence of theft from clients by lawyers in such firms (see this prior post).]

According to a recent study of the legal profession in Ontario, Canada, the trend of lawyers deferring retirement is most apparent in nonurban areas, and is also more prevalent among sole practictioners — which are “over-represented in the ‘over 55′ age group” — than large firms. Moreover, the trend is “particularly apparent in the personal legal services fields” (real estate, family law, wills, criminal law). “The Changing face of the legal profession,” LawPro Magazine (Vol. 6:1, Winter, 2007; via Stephanie at Idealawg). Clearly, the Main Street legal client has more to worry about than clients of Wall Street/Biglaw as the profession ages.

Under the fold, I look at press, weblog, and periodical coverage of issues relating to the Graying Lawyer, note the general failure to look at the competence/ethics issues, and spotlight a few approaches that have been suggested as possible solutions. If you want some food for thought and a collection of useful links, keep on reading. Ditto if you’d like to help combat the mix of protectionism, pride and poor people’s skills that will surely keep far too many lawyers practicing well past their pull date. If you’re looking for definitive answers, you may already be suffering from peridementia. [Beware (or Rejoice): this essay grew to 11,000 words.]

March 17, 2007

With over a foot of new snow out my window, it sure doesn’t look like St. Patrick’s Day here in Schenectady, New York. The lead story in our local newspaper has the headline “Wearin’ o’ the white stuff” (Daily Gazette, March 17, 2007; $ubscript.) A few miles down NY Rt. 5, the 57th Annual Albany St. Patrick’s Parade has been postponed until next Saturday (see CapitalNews9), due to this March-maddening snow storm. So, what’s a poor Itali-Sicilio-American boy to do? Reminisce about weblog St. Paddy’s Days past, of course.

larger Finally, we admit to neglecting our Inadvertent Searchee study of errant search engine queries for almost a year now. But, we couldn’t help but notice that a Google Search for erin go bra meaning> brought a Buscador in Spain to f/k/a this morning. You see, thanks to the continuing fickleness of the logarithms of cyber-search, our September 2005 posting about a law firm webphoto of superstar paralegal Erin Brockovich — too much disclosure (erin go bra!) — is the #1 result for the erin go bra query. Indeed, if you scroll down the post, you can even find a definition, which was included to help any searcher who found himself inadvertently at f/k/a.

“HUTCHINSON ISLAND – A Palm Beach County prosecutor cried for help and struggled in the water Sunday after getting attacked by a shark while surfing on Tiger Shores Beach.

Adam McMichael, of Boynton Beach, suffered deep cuts on his right forearm by an unknown species of shark and was taken to Martin Memorial Medical Center in Stuart, witnesses said. . . . “

update (March 13, 2007): Good news from Sun-Sentinel.com, “Beach County prosecutor grateful for rescuers at beach” (March 12, 2007): “Doctors told him he would likely lose some of the nerves on the top of his right hand, but he should recover the full range of motion. ‘I’m very fortunate, and I owe it to all the guys who helped me,’ [Adam McMichael] said in a phone interview from his home in Boynton Beach. . . . As he paddled back toward the beach, which had no lifeguards, McMichael saw a wave of people responding to his calls for help. . . . ‘Everyone at the beach helped me out, McMichael said. ‘It was amazing. I question whether it would be like that anywhere else’.” [See Prof. Alan Childress’ tardy plunge into this topic here at Legal Profession Blog, March 17, 2007.]

March 8, 2007

You may recall that the first week of 2007 brought the premature blossoming of cherry blossoms in parts of the Washington, D.C. area. (see USAToday article, Jan. 4, 2007) It may have been extra-warm in many parts of the USA in December, but lots of places are now having the coldest nights of this winter as we approach the ides of March. This chill makes it especially important to remind ourselves how soon we’ll be enjoying those cheery harbingers of Spring — cherry blossoms and cherry blossom festivals. Two major North American festivals will soon take place:

The 2007 Vancouver Cherry Blossom Festival [VCBF], in British Columbia, Canada, which “is scheduled to kick off the season on March 22,” and will last a week. Linda Poole is its Creative Director.

The National Cherry Blossom Festival® in Washington, D.C., which will be held March 31 – April 15, and “is an annual two-week, citywide event featuring daily cultural performances, sporting events, arts & crafts demonstrations and other special events.” This morning (March 8), festival organizers held a press conference to announce the calendar of events and the projected peak blossoming period.

so far away –
cherry blossoms and the smile
that humbles them

. . . . . . . . . . . . . . . . by dagosan

The blooming period of cherry blossoms can last as long as 14 days. As we said last year, in a post about the DC festival, the contrast of the beauty and the impermanence of the blossoms have long made them the perfect subject for haiku (and for zen philosophers). Due to this traditional link between haiku and cherry blossoms, the two-year-old Vancouver festival has held a cherry blossom Haiku Invitational Contest each of the past two years.

Last year, seven of f/k/a’s Honored Guest Poets had haiku that were selected by the VCBF judges for special recognition. You can find their 2006 poems reprinted below the fold of this posting.

This year, VCBF’s contest attracted 1,130 haiku entries from 32 countries. Five members of the f/k/a Honorable Guest family had winning haiku for 2007, as did our adopted family member, Aurora Antonovic (of Toronto). Here are their poems:

In addition, Heron’s Nest readers choose their Favorite Poets (who are arrived at by totaling the number of votes awarded each poet for their entire body of work in Volume VIII. ). For 2006, the Grand Prize went to our Honorable Guest Poet and friend, John Stevenson and the First Runner-up Prize went to Billie Wilson.

When I emailed John to congratulate him last night, he wrote back: “Each time that I’ve had this kind of boost from the readers of The Heron’s Nest I’ve wished that there was some way that I could say thank you to them.” To the THN readers who stop by f/k/a: Please Consider yourself thanked by John (plus me — and Billie, too).

As a bonus for f/k/a readers, below the fold you will find haiku by our family of Honored Guests from the The Heron’s Nest, Vol. IX, No. 1 (March 2007), which was also published online yesterday. (more…)

Comments Off on such naches: 2006 Heron’s Nest Readers’ Choice Awards

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. . . From 2003 to 2009, f/k/a ["formerly known as"] was the home of "breathless punditry" and "one-breath poetry." It is all here in our Archives. You'll find commentary on lawyers and legal ethics, politics, culture, & more, plus "real" haiku by over two dozen Honored Guest Poets.